Citation Nr: 0930858
Decision Date: 08/18/09 Archive Date: 08/27/09
DOCKET NO. 06-39 629 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to a initial compensable disability rating
for service-connected onychomycosis of the feet.
2. Entitlement to an initial compensable disability rating
for service-connected fungus of the fingernails.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Whitehead, Associate Counsel
INTRODUCTION
The Veteran had active service from April 1962 to July 1970.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a May 2006 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, which granted service connection for the
above-referenced disabilities and assigned each a
noncompensable disability rating. The Veteran expressed
disagreement with the assigned initial disability ratings and
perfected a substantive appeal.
In November 2006, the Veteran testified at a formal hearing
over which a Decision Review Officer of the RO. A transcript
of that hearing has been associated with the claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Unfortunately, a remand is required in this case. Although
the Board sincerely regrets the additional delay, it is
necessary to ensure that there is a complete record upon
which to decide the Veteran's claims so that he is afforded
every possible consideration. VA has a duty to assist
claimants in obtaining evidence needed to substantiate a
claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp.
2009); 38 C.F.R. § 3.159(c) (2008).
The Veteran has asserted that the noncompensable disability
ratings currently assigned for his onychomycosis of the feet
and fungus of the fingernails do not accurately reflect the
severity of his conditions. Specifically, the Veteran,
during the November 2006 formal hearing and in a December
2006 statement; and his representative in a July 2009 Written
Brief Presentation, each asserted that his skin disabilities
had spread on his feet and to other parts of the body. Thus,
the Veteran has essentially claimed that his disabilities
have gotten worse since the last VA examination conducted in
April 2006.
Moreover, the April 2006 examination is over three years old,
and is therefore too remote in time from which to evaluate
the current severity of the Veteran's disabilities. See
Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that
a Veteran was entitled to a new evaluation after a two year
period between the last VA examination and the Veteran's
contention that his disability has increased in severity) and
Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination
too remote for rating purposes cannot be considered
"contemporaneous"). Therefore, due to the passage of time
and the Veteran's assertion, the Board finds that additional
development is warranted to determine the current nature,
extent, severity and manifestations of his service-connected
onychomycosis of the feet and fungus of the fingernails. As
such, VA is required to afford the Veteran a contemporaneous
VA examination. See Palczewski v. Nicholson, 21 Vet. App.
174, 181 (2007); Snuffer, 10 Vet. App. at 403; see also
VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC shall schedule the Veteran
for an appropriate VA skin examination in
order to determine the nature and severity
of the service-connected onychomycosis of
the feet and fungus of the fingernails.
The entire claims file and a copy of this
Remand must be reviewed by the examiner in
conjunction with conducting the
examination. All necessary tests and
studies should be performed, and all
findings must be reported in detail.
Unretouched color photographs of the
involved areas should be included in the
report.
The examiner should set forth in detail
all current symptoms, clinical findings,
and relevant diagnoses.
It is requested that the examiner indicate
what percentage of the entire body, and
what percentage of any exposed areas is
affected by the service-connected
onychomycosis and fingernail fungus and
whether antibiotic, systemic therapy, or
other immunosuppressive drugs, are
required. If so, the frequency and length
of said therapy should be identified.
The examiner should elicit information as
to the effect of the diagnosed skin
conditions have had on the Veteran's daily
life and occupation.
The examiner is also asked to comment on
the impact of the claimed increase in
severity of the Veteran's disabilities, if
any, on the his employment and activities
of daily life. A complete rationale for
any opinion expressed shall be provided.
2. The RO/AMC will then review the
Veteran's claims file and ensure that the
foregoing development actions have been
conducted and completed in full, and that
no other notification or development
action, in addition to those directed
above, is required. If further action is
required, it should be undertaken prior to
further claim adjudication.
3. The RO/AMC will then readjudicate the
Veteran's claims. If the benefits sought
on appeal remain denied, the Veteran and
his representative should be provided with
a Supplemental Statement of the Case. An
appropriate period of time should be
allowed for response.
Thereafter, if appropriate, the case is to be returned to the
Board, following applicable appellate procedure. The Veteran
need take no action until he is so informed. He has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes
of this remand are to obtain additional information and
comply with all due process considerations. No inference
should be drawn regarding the final disposition of this claim
as a result of this action.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).